The latest trend is that the agriculture industry is even trying to ban photographs of farms taken from the air. It is unlikely that aerial photography can document animal abuse, but these industries are clearly concerned. So what are factory farms trying to hide? Will a drone allow us to see the scope of pollution caused by these industrial operations? I'm going to find out...

As Potter notes, it's not clear what evidence of animal abuse a drone will be able to gather, but it's both an interesting attempt to circumvent ag-gag laws that seem to have no rationale other than covering up abuses, and another example of drones being used in innovative -- and peaceful -- ways.

from the urls-we-dig-up dept

Humans have obviously had a significant impact on the Earth. We've killed off various species and built stuff that may long outlast our grandchildren (e.g., the pyramids, the Long Now clock, nuclear waste facilities, etc.). At some point, we might want to think about what we'll leave behind after we're gone ourselves. Here are just a few links on planning for the future for our world.

from the security-through-obtusity dept

James Clapper's order forbidding both current and former employees from discussing almost anything with the media has raised more questions than it's answered. It appears to have been written as a response to the Snowden leaks (as well as various unnamed officials' responses to those leaks), but its restrictiveness does nothing to prevent document leaking and has created a whole lot of confusion.

To begin with, the very definition of media/press is impossible to pin down. According to the original order, anything from major networks to officials' own social media accounts were off limits. A clarification issued shortly thereafter offered nearly nothing in the way of clearing things up.

One former intelligence official who now works in the private sector said he declined five recent requests to discuss national security issues on television news shows because he was afraid of having his security clearance revoked or being fined for breaking the rules. Ironically, the former official said, he only learned about new restrictions on talking to the press from Gen. Keith Alexander, the former director of the National Security Agency, when he discussed it with comedian John Oliver for his new HBO talk show.

Much like many legislators and government officials learned of the NSA's activities from outside sources, former officials are learning more about a policy affecting their press interactions from other former officials interacting with the press.

Meanwhile, Clapper's office claims this policy has always been in place, despite the reactions that clearly indicate otherwise. It also should be noted that this "there all along" policy hasn't prevented various unnamed intelligence officials -- some of them still currently employed -- from offering their opinions on the NSA's programs over the past several months.

It also hasn't prevented former NSA head Michael Hayden from acting as the agency's biggest cheerleader, apparently appearing at any press venue that will have him.

Several sources cited Michael Hayden, the former director of the NSA and the CIA, as a prime example. Hayden writes a regular column for the Washington Times. Does that mean Hayden is now a journalist, some former officials asked? If so, are they prohibited from talking to him, too?

Spokespeople for the agency claim Hayden runs everything by the agency first, but if that's true (something that seems unlikely given the number of appearances, including a live debate with NSA critics), that makes him the minority. Other former officials claim that if Clapper's going to pretend this policy isn't new, they'll just continue to route around his office, just as they did before the supposedly "not new" policy went into force.

The former intelligence official who said he first learned of the policy by watching HBO said he's reluctant to call Clapper's office because he thinks it'll only invite more scrutiny. Another said that until he hears otherwise, he will continue to clear articles through his former agency, not the ODNI. And, he predicted, his colleagues will do the same.

The policy, which "isn't new" but still comes as a surprise to many former officials, is typical of the NSA's responses over the past several months -- long on indignant righteous fury and short on substance. That this supposedly pre-existing policy needed both a clarification and a declaration that nothing has ever changed is also indicative of the agency's clumsy attempts to embrace transparency place one tentative arm a few inches above transparency's shoulder: needlessly convoluted and ultimately useless.

from the idiots dept

So, about a month ago, we wrote about Amazon's ridiculous new patent on "photography against a white background," which got a fair bit of attention. There were debates among photographers, patent lawyers and lots of other people with opinions about just how legitimate (or not) the patent really was (hint: it's not). However, Charles Duan, Public Knowledge's patent expert, has written up a fantastic explanation for how Amazon was able to get the patent. And the main culprit, in a twist that should surprise no one is... CAFC. Yes, the Court of Appeals for the Federal Circuit strikes again.

The ethically challenged court that is at the root of so many problems in the patent system, often thanks to a too close relationship with patent lawyers, is the heart of the problem once again. Even with the Supreme Court unanimously reversing CAFC left and right (and even saying that CAFC "fundamentally misunderstands what it means to infringe" a patent), CAFC is still causing all sorts of damage.

The issue here is "obviousness." Now, you may recall that, back in 2007 (back when the Supreme Court was just getting warmed up with its annual bout of CAFC-smacking), the Supreme Court issued an important ruling in Teleflex v. KSR, saying that the CAFC's "standard" for what counts as "obvious" was way too strict, and that patent examiners should be allowed to use basic common sense in rejecting patents that tried to claim obvious things. This resulted in new guidelines at the US Patent Office, in which examiners actually had some ability to apply common sense. The new rules had an immediate impact, with courts and patent examiners getting much more aggressive in rejecting bad patents. Unfortunately, in 2010, then USPTO director David Kappos rewrote the rules again, deleting a bunch of "tests" for obviousness, making it once again harder for examiners to reject patents for obviousness.

More recently, CAFC effectively blessed a new set of very strict rules for judging obviousness that require any indication of obviousness to be written down somewhere. In other words, if you can't point to a written explanation that explicitly states that something is obvious, the USPTO won't reject a patent for being obvious. As Duan explains:

Hear-Wear was about a patent on hearing aids. The patent was being reconsidered by the Patent Office, and the independent claims had already been held unpatentable.

But a dependent claim further added an element about a wire coming out of the hearing aid:

Claim 3. The at least partially in-the-canal module for a hearing aid of claim 2 [of the Hear-Wear patent] wherein said insulated wiring portion is terminated by a plurality of prongs that provide a detachable mechanical and electrical connection to an audio processing module.

This is complicated language, so the visual to the right should help you to understand it.

Most people call this a plug: a plurality of prongs (those two things at the end) that provide a detachable mechanical (you can plug and unplug it) and electrical connection (electricity flows across the prongs) to an audio processing module (whatever you plug it into, like your computer).

It is hard to believe that a patent could be granted for adding a multi-pronged plug to a well-known invention. “Every purchaser of electrical devices in the United States for the past 50 years or more is familiar with multipronged electrical connections,” wrote the lone dissenting judge in Hear-Wear. But the two judges in the majority would have none of that. As they said, the Patent Office “cannot accept general conclusions about what is ‘basic knowledge’ or ‘common sense’ as a replacement for documentary evidence for core factual findings in a determination of patentability.” Proving this patent obvious, according to them, required paper documentation.

Even though this latest case is a recent ruling, it shows the kind of situation that CAFC has been creating for ages. It has never appreciated the idea that obviousness is different than prior art. A patent is only supposed to be awarded if it's both new and non-obvious to a person skilled in the art. But, for reasons that make no sense, many in the patent world seem to think that something is only obvious if it's been first written down somewhere specifically. But, of course, some things are so obvious that there's no need to write them down.

And that's the case with this white background patent. As Duan points out, one of the dependent claims adds what may seem like a useless detail to the patent: "The studio arrangement of claim 2, wherein the first distance is about 4.5–5.5 times a height of the top surface of the elevated platform. " That 4.5-5.5 times issue is really nothing special, but because a previous patent on a similar setup doesn't include the number, well, suddenly this patent is "non-obvious."

No one would write an article with that exact distance ratio or file a patent application about it. No one would want to do so. It was too uninteresting a feature to have ever merited any attention. Who knew if Saigo had used that distance ratio—Saigo’s application didn’t say. Who knew how many other photographers had actually used that distance ratio before—it didn’t matter, since it wasn’t on paper before her. Who knew if some college dissertation mentioned the exact numbers—with only a few hours left, and with a stack of other applications to examine, this examiner would not find it.

It was a silly thing to grant a patent on, no? Photography against a white background is obvious, but photography against a white background at a certain distance is nonobvious? The examiner could perceive no reason why that 4.5–5.5 ratio was advantageous, and the text of the application revealed none. If this patent issued, it would not be because the invention was an improvement; it was because this Studio Arrangement claim was different. Not better, just different.

But, the law said, that was enough to grant a patent.

Welcome to the wonderfully insane world of patent law, where common sense has no place. And you can patent just about anything if you're tricky enough.

from the wait,-what? dept

Here's a bizarre story. A German reporter, Julia Prosinger, spent a week in the NYC offices of the ACLU with Ben Wizner, one of the key lawyers working with Ed Snowden. There, she reports about the Robot Snowden that is set up in the ACLU offices, allowing Snowden to "hang out" with ACLU folks any time he wants (assuming people are around). You may have seen the robot Snowden on stage at TED, but apparently Snowden is still using a version of that thing that's just kept at the ACLU's offices, allowing him to zoom around and talk to folks. They're even talking about having more Snowdenbots around the globe so he can pop in virtually wherever he wants.

Suddenly, during the attempt to explain German, I faint. I wake up, my head lies bedded on a sand bag, my body is in the recovery position. A calm voice is coming from the screen. “The first fits are always the worst,” Snowden says. I am lucky: Snowden is not only a patriot or traitor, he is also an epileptic. He instantly recognised what was happening to me. He tells me that he was only diagnosed when he was 23 years old. When he fled the US a little more than a year ago, he told his employer that he had to go away for a few weeks for treatment for his epilepsy. Then Snowden apologises for making me look at the flickering screen, it had triggered the fit, he says.

Ben Wizner brings a glass of juice. He is moved. He has been travelling for a year, because Snowden is stuck in Russia. He speaks where Snowden doesn’t have a voice. For a year now he has literally been Snowden’s right-hand man.

He just followed Snowden’s advice via Skype and stopped me from falling against the metal filing cabinets in his office. “That’s Ed how I know him. The empathy, the clear voice, the care,” says Wizner.

Of course, now we wonder how Mike Rogers will spin this into more evidence of Snowden being a Russian spy...

from the best-promotion-uber-could-get dept

As you may have heard, cab drivers across Europe did the European-thing to protest the rise of disruptive services like Uber: they went on strike, snarling traffic in many European cities. Uber long ago learned that every attack on its service is a fantastic promotional opportunity, but this "strike" may have been the best by far. In other words, it appears to have completely backfired on the strikers, with Uber signups in London jumping an astounding 850%. Basically, the "protests" have pissed off people at cab drivers and made them more aware of Uber. I don't see how that benefits the cab drivers.

In fact, Uber had been hovering around the 100th most popular app in the UK over the past few weeks, but it has suddenly jumped to number 3.

This may be the least successful mass protest in history. Not only does it fail to accomplish any of its goals, it appears to have massively helped those it was targeted against. As the EU's Neelie Kroes points out, this is really part of a debate about the wider sharing economy, and the recognition that innovators are building new and disruptive services that are, quite frequently, much better for the public, even if they may be disruptive to existing businesses and employees.

But denying reality and trying to break the machines doesn't work. Ever. And, as in this case, sometimes it actually benefits those they're fighting against.

from the that-could-be-something dept

Nearly all of the focus on the big net neutrality fight of the summer has been on the FCC. This makes sense, since the FCC regulates internet and phone access providers, and that's where this battle is. The small bits of focus that go beyond the FCC seem to move only over to Congress, and the question of whether or not it would push some sort of legislation that would mandate the FCC do something different. But, the problem is that Congress simply won't do anything on this (the issue is too partisan and too toxic) and the FCC appears to be similarly constrained, mainly by a chronic lack of backbone, combined with the ever present revolving door between the FCC and the telco/cable companies they "regulate" (a problem we've been reporting on for years). The FCC could do some things, but just doesn't seem motivated to (yet).

However, it seems that another option that gets no attention at all might be having the FTC, rather than the FCC, rescue the open internet and put the big broadband players in their space. The Federal Trade Commission has a fairly broad mandate to protect consumers, and while there are times that I worry its crusading can go a little far, for the most part, it really does seem to do a good job figuring out ways to step in where other parts of the government are failing to protect the public and innovation. While Congress and the USPTO are still failing to do anything useful about patent trolls, the FTC has been looking for ways to combat trolls for a few years. The FTC has also gone to bat for innovative companies stymied by local regulations, including Tesla and Uber. Over at the Disruptive Competition blog, Glenn Manishin has a great post about the FTC's "competition advocacy" and how important it is in a variety of markets.

It seems like the FTC can -- and perhaps should -- get involved in the net neutrality fight. In fact, in many ways, it may be a much better fit, in part because it could pretty easily justify getting involved at a few key juncture points. First, it could easily jump in on the current interconnection disputes, which appear to be where the real fight is happening these days (and it's an area which the Tom Wheeler FCC is insisting is "separate" from the net neutrality fight, even though it's really not). The interconnection fights have been a way for the big broadband providers to get everything they want without "technically" violating the concept of net neutrality on the last mile. The link above describes this if you haven't paid close attention to the differences between the fight over discrimination on the last mile and with interconnection.

But the key issue with the interconnection fights, as we were just explaining, is that the the broadband players are simply failing to deliver to end users what they sold them -- and that's a classic example of the situations where the FTC normally steps in. Customers of broadband providers are paying them to deliver the content they request over the internet, and the broadband providers are purposely not delivering that content at a quality level they have promised to provide. It seems like a situation where the FTC might easily step in and point out that broadband providers made commitments to customers that they have failed to deliver.

A second area where the FTC could have an impact is in the arena of competition advocacy to get around local barriers to competition. As we've discussed at length over the years, the big broadband players have worked incredibly hard to ban competition at the local level, often in egregiously offensive ways, including (but not limited to) total bans on municipal broadband in 20 different states -- even as many (though, certainly not all) municipal broadband projects have shown tremendous success, and with that success comes better broadband.

While Tom Wheeler has indicated that the FCC may step in to preempt state laws that block competition, the FTC can start taking action on that as well, putting pressure on states and cities, as it's done with things like Uber and Tesla. Furthermore, it seems that if broadband providers like Verizon are going to make use of common carrier rules in order to get subsidized access to rights of way such as conduits and electrical poles (while trying to stay free of the exact same rules for the same services they run over those lines), the very least they can do is let others get access to the same opportunities.

At the heart of all of this is anticompetitive practices by the big broadband players, and that's exactly where the FTC is supposed to step in and do something. To be fair, the FTC hasexplored this issue in the past, and some in the FTC have suggested they should take a larger role in the process. And, in the meantime, there are clear pros and cons to an FTC approach rather than an FCC one (including the lack of a specific ability to outright ban discriminatory practices) -- but with a weak FCC and a nearly impotent Congress on this issue, it seems like getting the FTC ramped up and involved in this issue might actually lead to better long-term results.

from the going-to-be-an-important-fight dept

Back in April, we wrote about a magistrate judge ruling that Microsoft had to comply with a warrant asking for data that was held on servers in Dublin. Microsoft argued, quite reasonably, that a US warrant doesn't apply outside of the US. Unfortunately, magistrate judge James Francis disagreed, saying that while it's true that traditional warrants only apply inside the US, this is different because it's "digital." He argued that because the issue was about information, rather than physical property, it could be considered more like a subpoena than a warrant. As we noted, Microsoft made it clear that it would challenge this ruling, and now it has done so, arguing that the ruling flies in the face of the law and the Constitution. This summary from Microsoft's filing is pretty clear on what an incredibly big deal this is, with the government basically seeking to get the best of a subpoena and a warrant without any of the protections and limits required of either:

The Magistrate Judge issued a warrant under the Electronic Communications Privacy Act ("ECPA")
that on its face, purports to authorize the Government to search any and all of Microsoft's facilities worldwide. Microsoft moved to vacate the warrant because the private email
communications the Government seeks are located in a Microsoft facility in Dublin, Ireland and
because Congress has not authorized the issuance of warrants that reach outside U.S. territory.
The Government cannot seek and a court cannot issue a warrant allowing federal agents to break
down the doors of Microsoft's Dublin facility. Likewise, the Government cannot conscript Microsoft to do what it has no authority itself to do -- i.e., execute a warranted search abroad. To
end-run these points. the Government argues, and the Magistrate Judge held, that the warrant required by ECPA is not a "warrant" at all. They assert that Congress did not mean "warrant"
when using that term, but instead meant some previously unheard of "hybrid" between a warrant
and subpoena duces tecum. The Government takes the extraordinary position that by merely
serving such a warrant on any U.S.-based email provider, it has the right to obtain the private
emails of any subscriber, no matter where in the world the data may be located. and without the
knowledge or consent of the subscriber or the relevant foreign government where the data is
stored.

This interpretation not only blatantly rewrites the statute, it reads out of the Fourth
Amendment the bedrock requirement that the Government must specify the place to be searched
with particularity, effectively amending the Constitution for searches of communications held
digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border
criminal investigations. If this is what Congress intended, it would have made its intent clear in
the statute. But the language and the logic of the statute, as well as its legislative history, show
that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that
warrants may not be issued to obtain evidence located in the territory of another sovereign nation.

The Government's interpretation ignores the profound and well established differences
between a warrant and a subpoena. A warrant gives the Government the power to seize evidence
without notice or affording an opportunity to challenge the seizure in advance. But it requires a
specific description (supported by probable cause) of the thing to be seized and the place to be
searched and that place must be in the United States. A subpoena duces tecum, on the other
hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government
wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction
between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain
types of data with a subpoena or a "court order," but required a warrant to obtain a person's most
sensitive and constitutionally protected information -- the contents of emails less than 6 months
old.

Verizon has stepped in as well, pointing out that if the original ruling is allowed to stand, it could have significant negative impact on the ability of US businesses to get non-US users to trust them -- an increasingly important issue in light of the Snowden revelations.

The magistrate’s ruling, if left standing, could cost U.S. businesses billions of dollars in lost
revenue, undermine international agreements and understandings, and prompt foreign
governments to retaliate by forcing foreign affiliates of American companies to turn over the
content of customer data stored in the United States.

The recent revelations about U.S. intelligence practices have heightened foreign
sensitivities about the U.S. government’s access to data abroad, generated distrust of U.S.
companies by foreign officials and customers, and led to calls to cease doing business with U.S.
communications and cloud service providers. Studies have estimated that this distrust will result
in tens of billions of dollars in lost business over the next few years. The magistrate’s ruling, if
left standing, will dramatically increase the harm to American businesses. It would mean that
foreign customers’ communications and other stored data would be available to hundreds or
thousands of federal, state, and local law enforcement agencies, regardless of the laws of the
countries where the data is held. Foreign customers will respond by moving their business to
foreign companies without a presence in the United States.

If you hadn't figured it out by now, this case is going to have tremendously important ramifications for privacy around the globe.

from the rights-holder-bot-claims-upteenth-victim dept

Bogus YouTube takedowns? We've seen our share of those. So, when this arrived in the Techdirt submission box from one of our readers, I wasn't very surprised.

Over the past several weeks, an unidentified quadcopter owner has been flying over Kyle Field at Texas A&M shooting videos of the stadium as it undergoes massive renovations. Texas A&M University forced youtube to block the quadcopter videos over a copyright claim. The claim is (at best) dubious. The videos are posted for free, the school is a state school, and all shots are of outdoor objects. Perhaps the school believes that A&M logos located on and around the stadium are somehow subject to copyright. (via this link)

That could very well be. Entities often issue bogus takedown notices and cease and desists, often becoming the real "morons in a hurry" by conflating copyright and trademark in their hurry to flex their ownership. Even if the logos were protected, they would be covered under trademark law, rather than copyright. That's not to say YouTube videos can't be taken down for trademark violations, but it would be a rather unusual situation.

The video that no longer exists states clearly that it has been removed due to a "copyright claim by Texas A&M University." If Texas A&M was that assertive about its logos or making some bogus claim about owning the airspace over the stadium, it certainly would have at least tried to remove another video posted by the same account containing the same sort of footage. But it didn't.

And there's where we find our first indication that this takedown has nothing to do with trademark or A&M's physical property. In the comments, this exchange takes place.

If you can't see or read the screenshot it says the following:

Commenter: Should have had music provide by the Fight'n Texas Aggie Band.﻿

Matt Burger (account owner): Look at the first video/photo slideshow. Right in your wheelhouse

This suggests the background music in the first (now removed) video may have featured Texas A&M's creations. A tweet by Matt Burger (creator of the drone footage) seems to confirm this.

If you can't see this, it says:

When editing it's hard to choose. Pick the song that sounds like a 90's montage, or the well known song that will violate copyright. #grind

So, it would appear that Texas A&M's copyright claim was all about the music and had nothing to do with what the drone recorded. While it would have been a bit kinder of A&M to simply have the soundtrack muted rather than kill the video entirely, that's entirely decided by presets on the college's end of the YouTube world, something that isn't going to be applied on a case-by-case basis. Goodbye, Burger's drone footage. And, like so many other cases involving both YouTube and other IP owners, goodbye fair use. That's what happens when algorithms do all the thinking.

This takedown wasn't abusive but it's still a long way from the most desirable outcome. Texas A&M shutting down a video taken by an incredibly loyal fan isn't really a win for anybody.

from the something's-badly-broken dept

Last week, we wrote about the latest in the Jewel v. NSA case, where the Justice Department admitted to the EFF that the NSA was still destroying surveillance evidence, despite a temporary restraining order in March ordering it to stop. The EFF had rushed over to the court to get an emergency order to get the DOJ/NSA to stop -- and the DOJ flipped out, arguing that such an order was effectively impossible, since the information was quickly spread throughout many different systems, and stopping the program from deleting unnecessary info that was collected under that program (the so-called minimization efforts) might require the NSA to stop a huge amount of intelligence gathering, just to handle the situation. And, yes, there does appear to be some significant amount of irony in the idea that the DOJ insists that an order that it stop destroying evidence might mean that the NSA would have to stop collecting data in the first place. Either way, the judge was at least convinced enough that the court allowed the NSA to keep destroying evidence while the two sides further brief the issue, for a later ruling on whether or not the restraining order really applies to the information collected under Section 703 of the FISA Amendments Act.

For an agency whose motto is "Collect It All," the NSA's claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs' data here without retaining everyone's data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

The ACLU calls this "too big to comply," a play on the infamous "too big to fail" claims towards Wall Street during the 2008 economic crisis. Of course, back in 2008, I made a simple suggestion on the "too big to fail" argument, which would seem to apply equally here. Back then, I pointed out that if banks are "too big to fail," there's a reasonable solution that doesn't involve making them even bigger (which was the government's solution): it was to require them to get small enough to fail again. Basically, the government could offer them bail out money on the condition that the banks be reorganized in a manner that if particular pieces started to fail, it didn't create systemic risk to the entire system. In some forms it wouldn't be all that different than a traditional antitrust breakup. And, yes, there's a lot of complexity hidden within such a proposal, but it seems like the only thing that really made sense (though, unfortunately, no one in the government seemed to agree).

So, shouldn't we take the same approach with the NSA? If its systems are truly "too complex to comply" or "too big to comply" with preservation orders, then shouldn't the court require the NSA to change its systems such that it can actually comply with legal court orders to preserve evidence needed in lawsuits that explore the constitutionality of their surveillance efforts?

from the every-little-thing dept

The DC political world was completely shocked last night as House Majority Leader Eric Cantor lost his primary against a relatively unknown and completely underfunded challenger named David Brat. His Wikipedia page was set up only yesterday and initially had just two sentences, before the primary victory, leading people to suddenly start filling in more information. Just hours before the victory, the Washington Post had written: "the question... is how large Cantor’s margin of victory will be." Not surprisingly, the Post has now completely erased all traces of its Dewey Defeats Truman article, replacing it with one about Cantor's loss. As the political press tends to do, this morning everyone's digging for the "reasons" behind this unprecedented loss (no majority leader has ever lost a primary apparently) -- though almost all of the analysis is meaningless. Searching for a larger message in all of this is just silly -- as there are plenty of counter-examples. Whether it was about "the tea party," "immigration," "bipartisanship," "fed up with DC" or whatever... it doesn't matter. Politics can sometimes be a bit more complicated and nuanced than the single narrative.

But, on issues of importance around here, it's worth noting that Cantor's loss could be bad news for the NSA in a big way. Cantor was a key part of the House leadership that was instrumental in supporting the NSA and blocking any meaningful attempts at reform. Rather than looking into what the NSA was doing, Cantor wanted to lead an investigation into Ed Snowden. It is believed that Cantor was also a key part of the effort last year to make sure that the Amash Amendment failed.

Dave believes that the Constitution does not need to be compromised for matters of national security. He supports the end of bulk phone and email data collection by the NSA, IRS, or any other branch of government.

While some are trying to spin Brat's victory as a vote against the NSA, that seems unlikely (and again, seems to be people spinning this story to their own particular narrative). It appears that Cantor's loss (and, rest assured, this was much more a Cantor loss than a Brat win) was for many reasons, and it seems likely that the NSA was pretty far down the list. Obviously, assuming Brat goes on to win in the fall (now very likely), as a freshman Representative, he won't be able to do all that much. But just the fact that a very powerful ally of the NSA has lost to someone critical of the NSA is helpful in pushing back on the NSA's control over Congress.

Of course, there is one caveat in all of this. While Cantor cannot appear on the ballot (such as, by running as an independent) in the fall election, thanks to Virginia's sore loser law, he could potentially mount a write-in campaign. And, also, while the Democratic contender in the fall is considered to have absolutely no chance against any Republican listed, it is worth remembering that people also said Brat had no chance against Cantor. Either way, even if this wasn't a referendum on the NSA, it could be bad news for the NSA in losing one of its most powerful allies.

from the not-how-it's-supposed-to-work dept

We're obviously big supporters of the public domain here at Techdirt, and frankly, believe that many more works should be in the public domain. In fact, we treat our own articles, written by staffers here, to be public domain, even though there's no official legal mechanism to officially put them in the public domain. We can only proactively state that we will treat them as such. And, of course, thanks to the switch from "opt-in" copyright to "everything eligible is automatically covered by copyright" in 1976, combined with ever-farther-reaching copyright term extension, nothing has officially entered the public domain in the US in ages. In the past, I've often relied on the handy website set up by my alma mater, Cornell, in trying to determine what is and what is not in the public domain, but that's somewhat limited. So it's great to see that the folks over at the Samuelson Clinic at Berkeley have developed a detailed handbook to determine what is in the public domain, which comes complete with this handy-dandy (if not altogether simple) graphic:

The handbook itself (embedded below, based on their Creative Commons license -- which I'll note, is not CC's CC0 public domain dedication) is 52 pages going into detail explaining some of the details and nuances of the graphic. It's actually quite handy in many ways, but it still seems... wrong that the public domain should ever need a 52-page handbook just to figure out if a work is or is not actually in the public domain. It really seems to drive home just how much we've sidelined the public domain and created permission culture instead. Oh, and, you'll note that for stuff published after January 1, 2003, the only way for anything to actually go into the public domain... is for the copyright to expire (in other words, no real way to put these works into the public domain).

from the 90-of-which-failed-to-find-their-targets dept

Late last year, we discussed an investigation of several Cleveland police officers after a high-speed pursuit involving over 60 squad cars and 100 officers culminated in officers unloading 137 bullets in the direction of the stopped vehicle -- 47 of which found homes in the two suspects, who were both killed. One officer -- Michael Brelo -- fired 49 rounds in a little over 20 seconds.

In all, the investigation by the state found that 64 officers violated orders, but none of these officers received anything longer than a 10-day suspension. Two supervisors were demoted and one was fired.

This whole debacle was set off by a couple of perception errors. Some officers thought they heard a gunshot and others thought an officer had been injured. This was all the "evidence" the officers needed to justify mounting a by-any-means-necessary takedown of the two suspects. 137 bullets later, the officers searched the vehicle, recovering exactly zero weapons, bullets or casings.

Nearly eight months later, a grand jury has returned charges against six of the officers. Five of the officers -- all supervisors -- are facing misdemeanor charges of dereliction of duty. Officer Brelo, the cop who single handedly delivered over a third of the 137 bullets, will be facing something more severe.

The Cuyahoga County Grand Jury today voted to indict Cleveland Police Patrol Officer Michael Brelo on two counts of Manslaughter for the killing of Timothy Russell and Malissa Williams on November 29, 2012.

Under Ohio Revised Code Section 2903.03, Manslaughter is a felony of the first degree, carrying a mandatory prison sentence of from three to 11 years.

The prosecutor's statement further details Brelo's actions.

After more than 100 shots were fired at Mr. Russell's car, it was trapped by police cruisers in a narrow lane and came to a full stop.

All officers at the scene saw fit to cease fire.

Then Officer Brelo started shooting again and fired at least 15 shots, including fatal shots, downward through the windshield into the victims at close range as he stood on the hood of Mr. Russell's car.

You can see Brelo's "heroics" in the State Attorney General's computerized "reenactment," based on evidence gathered. Starting about the 1:00 mark, you can see Brelo move closer to the suspects' vehicle (and across a squad car, apparently), before finally standing directly on the hood and firing down through the suspects' windshield.

The state prosecutor notes that the Supreme Court recently upheld the right of police officers to use deadly (read [in most cases]: "excessive") force to end pursuits that possibly endanger officers or citizens. (More on that here.) But he points out that this situation was not one of those.

The law does not allow for a stop-and-shoot...

Let's be clear what happened here:

The driver was fully stopped. Escape was no longer even a remote possibility. The flight was over. The public was no longer in danger because the car was surrounded by police cars and 23 police officers in a schoolyard safely removed from pedestrians and traffic.

The primary danger facing the police at this time was from themselves, if they continued to shoot at each other in the circular firing squad they had inadvertently formed.

After the ceasefire, Officer Brelo unleashed an unlawful, second barrage of shots.

The ultimate legal issue is whether the police officer was justified when he stood on the hood of Mr. Russell's car and emptied his clip into the occupants after the chance of flight was completely eliminated and they no longer presented a threat to the public's safety.

He was not.

The statement also calls out the dereliction of duty by police supervisors, who allowed a petty criminal to dictate the actions of a large percentage of Cleveland's police force that night, rather than seizing control of the situation themselves. The officers themselves aren't blameless, even those who didn't contribute to the hail of gunfire. Based on little more than a sound heard by a couple of officers (which may have been a backfire), dozens of cops bought into a narrative that armed and dangerous suspects were on the loose and may have (no one seemed to have been interested in confirming this) injured an officer.

The prosecutor notes the grand jury no-billed murder charges against Officer Brelo. Murder charges would be excessive, but manslaughter completely undersells Brelo's actions. After all, the vehicle was barricaded and every officer had ceased fire before he jumped up on the hood and ensured the two suspects were completely dead by unloading his weapon at point-blank range through the windshield.

Also noted by the prosecutor is the difficulty investigators had reconstructing the events, thanks to the Cleveland Police Department's lack of dashcams. Why these are still missing from its vehicles after decades of near-universal use by police departments nationwide is a true mystery, especially considering this fact:

The cost of investigating this shooting by the Attorney General, the Cleveland Police Department and the Grand Jury will exceed the cost of purchasing dash cams.

There's no conceivable reason for any law enforcement agency to be lacking this equipment. The only reasons verge on inconceivable, most of which can be traced back to a reluctance to be held accountable.

from the free,-libre,-open dept

One of the most striking and important developments in the world of technology over the last two decades or so has been the rise of an alternative mode of production that is open, collaborative and global. This began in the world of software, with Richard Stallman's GNU project, but has now been extended to the realms of text, data, science and hardware, among others. The free sharing of information to form a kind of digital commons, which lies at the heart of these projects, has also been applied to business, albeit in the modified form of collaborative consumption -- things like Airbnb. These different manifestations of fundamentally similar ideas have sprung up in a largely uncoordinated way, but an interesting question is whether they could be drawn together into a unified approach, applied to a whole country, say.
That's what Ecuador's FLOK Society (original in Spanish) has been exploring. "FLOK" is derived from "free", "libre" and "open knowledge"; here's how David Bollier, an expert on the commons, describes the project:

The FLOK Society bills its mission as "designing a world for the commons."
The research project will focus on many interrelated themes, including open education; open innovation and science; "arts and meaning-making activities"; open design commons; distributed manufacturing; and sustainable agriculture; and open machining. The research will also explore enabling legal and institutional frameworks to support open productive capacities; new sorts of open technical infrastructures and systems for privacy, security, data ownership and digital rights; and ways to mutualize the physical infrastructures of collective life and promote collaborative consumption.

The legitimacy and logic of the project comes from the National Plan of Ecuador, which is centred around the concept of Good Living (Buen Vivir), which is a non-reductionist, non-exclusive material way to look at the economy and social life, inspired by the traditional values of the indigenous people of the Andes. The aim of FLOK is to add "Good Knowledge" as an enabler and facilitator of the good life.

That sounds inspirational, but how will it work in practice? In particular, how will those participating in the "Good Life" earn a living through this "Good Knowledge"? Bauwens explains:

Think of the core model of our economy as the Linux economy writ large, but one in which the enterprises are actually in the hands of the value creators themselves. Imagine this micro-economic model on the macro scale of a whole society. Civil society becomes a series of commonses with citizens as contributors; the shareholding market becomes an ethical stakeholder marketplace; and the state becomes a partner state, which "enables and empowers social production" through the communication of public services and public-commons partnerships.

Central to the success of Linux has been the adoption of the GNU General Public License, which allowed code to be shared widely but in a way that prevented the software commons being enclosed by companies taking and using that code without contributing back. Building on the GNU GPL's ideas, Bauwens and his team have drawn up a new license, tailored to the needs of the FLOK Society project and the people of Ecuador:

traditional communities have suffered from systematic biopiracy over the last few decades, with western scientists studying their botanical knowledge, extracting patentable scientific results from it, and then commercialising it in the West.

So fully shareable licenses like the GPL would keep the knowledge in a commons, but would still allow full commercialisation without material benefits flowing back to Ecuador. So what we are proposing is a discussion about a new type of licensing, which we call Commons-Based Reciprocity Licensing. This idea was first pioneered with the Peer Production License as conceived by Dmytri Kleiner.

Such licences would be designed for a particular usage, say biodiversity research in a series of traditional communities. It allows for free sharing non-commercially, commercial use by not-for-profit entities, and even caters for for-profit entities who contribute back. Importantly, it creates a frontier for for-profits who do not contribute back, and asks them to pay.

Although the license and FLOK Society are very consciously geared to the needs of the Ecuadorean nation that has sponsored them, the long-term goal is much more ambitious, and has at its heart ideas that have often been discussed here on Techdirt:

To work for a sustainable society and economy is absolutely crucial for the future of humanity, and while we respect the freedoms of people to engage in market dynamics for the allocation of rival goods, we cannot afford a system of infinite growth and scarcity engineering, which is what capitalism is.

In other words, today, we consider nature infinite and we believe that infinite resources should be made scarce in order to protect monopolistic players; tomorrow, we need to consider nature as a finite resource, and we should respect the abundance of nature and the human spirit.

Bauwens himself admits that FLOK Society is unlikely to transform an entire nation overnight, or even in the foreseeable future, but sees it as a crucially-important step towards that larger goal of global change:

the publication and the dialogue about the plan itself, and some concrete actions, legislative frameworks, and pilot projects, are the best we can hope for. What this will do is give real legitimacy to our approach and move the commons transition to the geo-political stage. Can we hope for more?

Personally, I believe that even if only 20% of our proposals are retained for action, I think we can consider it a relative success. This is the very first time such an even partial transition will have happened at the scale of the nation and, as I see it, it gives legitimacy to a whole new set of ideas about societal transition.